Deering Harvester Co. v. Johnson

Dodge, J. The single question presented on this appeal is whether the circuit court abused its discretion in holding that appellant had not satisfactorily shown that justice required a revision of the case in compliance with sec. 4035, Stats. 1898. Oakley v. Davidson, 103 Wis. 101. The reasons urged for review are that the county court erred in admitting the notes in evidence, and that appellant’s petition showed that he had a good defense on the merits. The admission of the notes was objected to principally because they showed upon their face material alterations, but also because no proof was made of the authenticity of the signature. Without passing upon the first objection, a subject discussed in Maldaner v. Smith, 102 Wis. 30, it seems impossible to acquit the county court of error in overruling the second ground. The alleged maker of the notes being dead, the rule of the common law applied, and proof of his signature was necessary before they could be received. Campion v. Schinnick, 93 Wis. 111. This conclusion, however, is not final upon the question which the circuit court had to consider. Full justice may be done by a decision notwithstanding the commission of specific errors. Nay, more, a judgment may be unsupported by the record and proofs on which it was rendered, so that upon appeal to a court of errors it must be reversed, and yet it may appear that justice would not be promoted by revision. A judgment may be just, though erroneous. Obviously the allowance of the claim is not unjust by reason alone of the [279] erroneous reception of the notes in evidence, if the notes were in fact duly executed in their present form by the deceased. The petition does not suggest or assert that such is not the fact. The necessary inference from such silence is that the appellant was satisfied that the authenticity of the signature and of the notes themselves existed and could be proved. Otherwise he should and would have asserted at least his disbelief in such authenticity as one of the reasons for revision. Doubtless he was so convinced by the testimony of Jacob Stumm, taken by deposition some two weeks before the application was made, and at that time part of the files of the case in circuit court. It thus appearing that the fact that the county court committed error in receiving the notes in evidence does not necessarily establish that justice requires revision, the question remains whether the allegation, sworn to by Larson, that Johnson, the appellant, “ believes that justice requires a revision of the case for the reason that there never was any consideration for said notes, and the estate of said deceased does not owe the indebtedness thereby purported to be evidenced, or any part thereof, as said executor is informed and believes,” is sufficient to convict the circuit court of abuse of discretion in denying to appellant the privilege of appealing. The question whether justice requires revision in cases under sec. 4035 is not a technical one. It appeals to broad and intelligent judgment and discretion in the court, adapted to variant situations, and involving different considerations. The amount in controversy may be insignificant; a purpose of delay or obstruction may be apparent; applicant’s views of the law.may be mistaken; the facts on which he relies may be immaterial, or the evidence thereof frivolous or obviously insufficient. "While, in deciding it, a genuine and substantial controversy arising from conflict between allegations of the petition and counter affidavits as to the facts [280] is not proper to be decided, but the facts properly asserted by the applicant which bear upon the merits are to be assumed as probably existing, and while all due liberality should be extended in favor of a full hearing, yet the burden is upon the applicant to satisfy the court that, in view of all the known facts, there is at least reasonable probability that upon further hearing a result more favorable to him will be reached. The court should be given opportunity to judge from the facts themselves, rather than from the applicant’s conclusions or generalizations, and it is the latter’s duty — since he is a supplicant for favor — to lay before the court, as fully and frankly as in his power, all the facts which he believes to justify him in making the application. Groner v. Hield, 22 Wis. 200; Downer v. Howard, 47 Wis. 476; Marx v. Rowlands, 59 Wis. 110, 114; Jamison v. Snyder, 79 Wis. 286, 288; Shuman v. Hurd, 79 Wis. 654, 658; Oakley v. Davidson, 103 Wis. 101; Capen v. Skinner, 139 Mass. 190; Sanborn v. St. Clair Circuit Judge, 94 Mich. 519, 526; Jerome v. Wayne Circuit Judge, 117 Mich. 19. The field of discretionary consideration in allowing appeal after absolute right is lost is, as to this branch of the question, very similar to that involved in opening a default or setting aside a judgment to let in a defense. It has frequently been held in the latter class of cases that allegations as to a defense, made upon information and belief, are not sufficient to justify relief from a judgment and opportunity to defend. Pinger v. Vanclick, 36 Wis. 141, 145; Superior C. L. Co. v. Dunphy, 93 Wis. 188, 193; Thayer v. Swift, Walk. Ch. 384; Meach v. Chappell, 8 Paige, 135. Completed litigation should not be revived without full affirmative showing that there are valuable rights at least likely to be protected by further hearing, and the authorities last cited are not without weight as guides to circuit courts upon applications like the present. If such courts allow themselves to be satisfied by the information and belief of an applicant, [281] and exercise their discretion in favor of the appeal, it by no means follows that such discretion should be disturbed by this court. On the other hand, however, where the court vested with, the discretion has exercised it the other way, and has refused to be satisfied of the probable existence of a defense when no facts tending to establish it have been presented, can it be said that clear abuse of discretion appears? It may well be that failure by petitioner to lay before the court any facts justifying his belief may have satisfied the court that the application was not in good faith and that no such facts existed. We do not, and presumably the circuit court did not, overlook the consideration that increased liberality should be accorded those who, like administrators, litigate in a representative capacity and with reference to transactions of which, ex necessitate, they can have only information and not personal knowledge. Nevertheless, if the applicant had a belief founded upon information, it follows necessarily that he could have stated to the court what information he had. If derived from documents, they could and should have been laid before the court; if from statements of other persons, affidavits from such others of the truth of their statements should have been presented, or applicant’s inability to obtain them should have been explained. Such was the course pursued in Jamison v. Snyder, 79 Wis. 286, the only case in which this court has reversed the decision of a circuit court denying appeal. Not only was the application in this case lacking in the respects above suggested, but it contained no authentic assertion, even, that the applicant had either information or belief in the existence of any defense. The formal declaration by the attorney that his client has information and belief cannot, in the nature of things, be an allegation of anything within the former’s oAvn knowledge, and he does not attempt to state any ground for his assertion of his client’s state of mind, not even that any disclosure thereof has been made to him by [282] the latter. Upon such an application, the court may well have been satisfied that neither the applicant nor his attorney had either knowledge or information of any facts likely to constitute any defense or to make allowance of appeal fruitful of anything except delay and expense to both parties. It was, at least, a field in which the statute vested him with discretion, which we cannot say has been abused. By the Court.— The order appealed from is affirmed.